MP (Trafficking, Sufficiency of Protection) Romania

Factual and Procedural Background

The Appellant, a citizen of Romania, entered the United Kingdom clandestinely in June 2003 and claimed asylum after being arrested. The Secretary of State refused asylum and directed her removal as an illegal entrant. The Adjudicator dismissed the appeal on Refugee Convention grounds but allowed it on human rights grounds related to Articles 3 and 8 of the European Convention on Human Rights. Both parties were permitted to appeal the Adjudicator's determination. The appeal was heard over two days in early 2005.

The Appellant's background includes being kidnapped, raped, and trafficked by gangs in Romania and Italy before escaping to the UK. She reported the trafficking to Romanian police but received no effective protection. The Adjudicator found issues with her credibility but ultimately accepted her account. The Adjudicator also found that while Romania had a system of protection with inherent difficulties, the Appellant did not qualify as a refugee under the Convention but faced real risks under human rights grounds.

Legal Issues Presented

1. Whether the Adjudicator erred in assessing the sufficiency of protection available to the Appellant in Romania, particularly by focusing on the existence of protection systems without considering their effectiveness and the Appellant’s individual circumstances.
2. Whether the Appellant qualifies for protection under the Refugee Convention based on membership of a particular social group.
3. Whether the Appellant faces a real risk of ill-treatment or re-trafficking upon return to Romania engaging Article 3 rights.
4. Whether removal would constitute a disproportionate interference with the Appellant’s Article 8 rights to private life.
5. Whether the Adjudicator made material errors of law regarding the assessment of risk, credibility, and the application of relevant case law.

Arguments of the Parties

Appellant's Arguments

• The Adjudicator erred by focusing solely on the existence of protection systems in Romania without addressing their ability to provide effective protection, especially considering the Appellant’s individual needs.
• The Adjudicator failed to properly consider whether the Appellant had a well-founded fear of persecution for a Convention reason.
• The Appellant argued she belonged to a particular social group defined as "people who had been trafficked," which should qualify her for protection under the Refugee Convention.
• Material errors of law were made in the Adjudicator’s findings on both Convention and human rights grounds.

Respondent's Arguments

• The Adjudicator should have concluded that Romanian authorities would provide sufficient protection based on objective information.
• Regarding Article 8, the Adjudicator failed to give sufficient regard to evidence of medical care availability in Romania and speculated without basis about lack of facilities.
• The Adjudicator erred by speculating on the increase in human trafficking due to Romania’s alleged EU membership, which was factually incorrect.
• Some grounds of appeal related to the Adjudicator’s credibility findings were no longer pursued.

Table of Precedents Cited

Court's Reasoning and Analysis

The court identified multiple material errors of law in the Adjudicator’s determination, primarily related to the assessment of sufficiency of protection. The Adjudicator considered only the existence of protection systems in Romania without evaluating their effectiveness or the Appellant’s individual needs, thereby failing to apply the full legal test established in relevant case law.

The court relied heavily on the principles set forth in Bagdanavicius and Horvath, emphasizing that sufficiency of protection requires both willingness and ability of the State to provide reasonable protection tailored to the claimant’s circumstances. The court also noted a factual error by the Adjudicator in assuming Romania was an EU member, which tainted his reasoning on trafficking risks.

Regarding the Convention claim, the court rejected the Appellant’s argument that "people who have been trafficked" constitute a particular social group, as this definition is circular and based solely on the persecutory element.

On the risk of re-trafficking or ill-treatment, the court found no real risk to the Appellant, noting that the majority of trafficked women are deceived into trafficking and that the Appellant’s situation was atypical. The court accepted that Romanian authorities have increasingly taken steps to combat trafficking, including legal reforms, specialized police units, witness protection programs, and victim assistance shelters.

The court assessed the Appellant’s mental health evidence and concluded that while she suffers from PTSD and depressive illness, there was no established real risk of suicide or gross denial of rights upon return. The court also found no evidence of inferior medical treatment in Romania that would engage Article 3 protections.

In relation to Article 8, the court acknowledged that removal would interfere with the Appellant’s private life but found that such interference would not be of sufficient gravity to engage Article 8 protections to a degree that would prevent removal. The court applied the proportionality framework set out in Razgar and related authorities.

Overall, the court concluded that the State’s protection in Romania is sufficient both generally and in the Appellant’s individual case, and that the Adjudicator’s errors warranted dismissal of the Appellant’s appeal and allowance of the Secretary of State’s appeal.

Holding and Implications

The court’s final decision is to DISMISS the Appellant’s appeal and ALLOW the Secretary of State’s appeal.

This decision directly results in the affirmation of the refusal of asylum and the directions for removal of the Appellant from the United Kingdom. The court found that the Romanian State provides a sufficiency of protection to victims of trafficking, including the Appellant, and that the human rights grounds for protection were not met in this case.

No new precedent was established; rather, the court applied and clarified existing legal principles regarding sufficiency of protection, the assessment of individual risk, and the application of Articles 3 and 8 of the European Convention on Human Rights in the context of asylum and removal appeals.